Cayward v. Doolittle — 6 Cow. 602

Majority

p. 602

Cayward against Doolittle and others.

ALBANY,

Feb. 1827.

Headnote

Motion, in behalf of the defendant, to set aside the writ of replevin issued in this cause, on the ground that it was

plevinT* tested at one term, and returnable at the next term but one,

(an entire term intervening,) is voidable.

Semb. it may be amended ; but not unless the defect appear to have arisen from mistake ; and all suspicion be removed that the long return day was a trick to postpone the trial.

p. 603

tested August 19th, 1826, and returnable on the 1st of the present term, (one entire term intervening,) day

D. O. Bell, for the motion.

Whiting and Butler, contra.

The writ is clearly voidable at least. Goods cannot be arrested in this way, and the trial of the right postponed to any future time the party pleases. The writ might, perhaps, be amended, if we were satisfied that it was a mistake. (1 Cowen, 38.) But how it happened is not shown. It might have been a trick to get possession of the goods ; and postpone the trial by a long return day. The affidavits do not entirely remove the suspicion, that this proceeding was rather for the purpose of obtaining the vantage ground, in a negotiation about the property, which had been taken on attachment, than with the bona fide intention to try any question of right. The defendants show that the property was taken in September last; and one of the defendants was not summoned till on the eve of this term. There should be a strong excuse, to warrant an amendment under these circumstances.

Motion granted with costs.